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OACIQ > Law > Flashcards

Law Flashcards

1
Q

RE Law draws from four places. Name them

A

Statutes: Provincial and Federal
Jurisprudence: Court decisions
Doctrines: Legal texts written by legal community
Customs: Unwritten Rules

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2
Q

6 possible ways to acquire an immovable

A

Purchase
Exchange
Gift
Succession
Giving in Payment
Acquisitive prescription

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3
Q

Case law (define and name the hierarchy to follow)

A

Refers to all past decisions made by courts

Highest court in country (supreme court of Canada)
Second-level courts
Trial courts

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4
Q

6 ways to acquire a property

A

Purchase
Exchange
Gift
Giving in Payment
Succession
Acquisitive Prescription

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5
Q

Types of succession

A

Legal (deceased did not leave a will and legal heirs determined by Civil Code)

Testamentary (Will designates the person(s) to whom they bequeath their property

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6
Q

Forms of wills

A

Holograph will (written entirely by testator and signed by lien, must be probated by court of law) Probated = validation of the signature and legal capacity of the person

Notarial law (signed before a notary “en minute” in the presence of a witness, does not need to be probated)

Will made in the presence of witnesses (written by testator (or 3rd party for them in front of the latter) in the presence of 2 witnesses, must be probated by court of law)

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7
Q

Heirs vs legatees

A

Heirs inherit without a will, Legatees inherit with a will

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8
Q

4 conditions of acquisitive prescription

A

Peaceful (no threat of violence toward real owner)
Continued (at least 10 years)
Unequivocal (no doubt, ambiguity or uncertainty exists regarding the possessor’s situation)
Public (must exist in the eyes of third parties, public can see possessor carry out acts of ownership and property tax account is registered in the possessor’s name)

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9
Q

Name the types of rent

A

Gross rent least (monthly amount is fixed)

Net lease (Lessee responsible for a portion of opex, base rent (fixed amount) + additional rent (for opex, maintenance, insurance, etc)

Percentage rent lease (specific to multi-tenant retail locations (malls), base rent + % of income)

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10
Q

3 Matrimonial Regimes

A

Community of property (Before July 1, 1970)
Partnership of Acquests (After July 1, 1970)
Separation as to property

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11
Q

3 types of protective supervision

A

Tutorship (partial and temporary incapacitation)
Curatorship (Total and permanent)
Adviser

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12
Q

Types of immovable property

A

By nature (by definition immobile in its natural state (soil, plants, permanent structures and constructions) or movables incorporated with an immovable that lose their individuality and ensure the utility of the immovable (doors, windows, staircases))

By attachment or joinder (Permanently physically attached movables that do not lose their individuality (TV antennas, Light fixtures, above-ground pools))

By the object to which they are attached (real rights in the immovable as well as actions to assert such rights or to obtain possession of immovables)

By determination of the law (hypothecs on present and future rents and hypothecs on indemnities paid under insurance contract covering rents)

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13
Q

3 ways to put mobile home on market

A

Mobile home + land sold by same owner (BCS/PP)
Mobile home + land leased by same owner (Residential rental form)
Mobile home sold or leased but land belongs to someone else (mobile home forms)

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14
Q

3 components of the right of ownership

A

Usus: right to use and enjoy a property

Fructus: right to collect fruits and revenue produced by property

Abusus: right to dispose of, hypothecate, sell, lease or give away property

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15
Q

Dismemberments of rights of ownership

A

Usufruct

Use

Servitudes

Emphyteusis

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16
Q

Superficies

A

Each owner has full, distinct ownership; of the buildings (superficiary) and of the soil (held by subsoil owner)

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17
Q

Declaration of co-ownership consists of

A

Act constituting co-ownership
Description of the fractions
By-laws of the immovable

18
Q

How do you convert a building into a divided co-ownership?

A

Consult an architect to establish costs of individualization of services

Have cadastral redivision done by a land surveyor to establish private and common portions

Prepare declaration of co-ownership with a notary

If the building has had a rental unit in the last 10 years, there is a 4th step that is obtaining authorization from the Administrative Housing Tribunal

19
Q

When must you use pre-contract?

A

If the following 3 criteria are met

Immovable, whether it is already constructed or still to be constructed, is for residential use

Seller is either the builder or developer of the immovable

Buyer is a natural person who intends to occupy it personally

20
Q

Buyer vs seller choose notary

A

Buyer:

Buyer pays sale price in cash
If a hypothec is required to pay seller in cash, creditor may impose the choice of the notary on the borrower

Seller:

Buyer pays part of sale price in cash and takes over the existing hypothec
Buyer pays part cash and seller finances balance of sale price

21
Q

Law classifies contracts according to 6 features

A

Adhesion (e.g. service contract with Hydro-Quebec) vs Negotiated contract (brokerage contract)

Unilateral (PP before seller’s acceptance) vs Bilateral (accepted PP)

Onerous (deed of sale) vs Gratuitous (donation)

Commutative (brokerage contract) vs Aleatory (insurance policy)

Instantaneous performance (property sale) vs Successive performance

Consumer (purchase of a washing machine)

22
Q

Conditions of formation of contract

A

Consent

Qualities of consent (must be free and enlightened)

Defects of consent (errors, fraud, fear or lesion)

Legal capacity to contract

Prestation to be performed

23
Q

What is tacit renewal?

A

Lessee continues to occupy for more than 10 days after expiry of lease without opposition from lessor. Renewal is then for 1 year or for term of initial lease, if it was less than a year, on the same conditions

24
Q

Changes or work to the dwelling

A
  1. Notice: nature of work, start date, estimated duration, compensation, temporary evacuation of lessee (3 months before work), no evacuation (10 days before work)
  2. Compensation: for temporary evacuation, equal to the reasonable expenses of evacuated lessee, payable on date of evacuation
  3. Dispute: Housing Tribunal, lessee’s refusal to evacuate premises temporarily, suspension of work if application made by lessee
25
Q

Access and visit of dwelling

A

Lessor may require access to unit. May not access unit in lessee’s absence unless major emergency (fire, major water leak, etc)

  • Visit by a new lessee
    • Upon receiving notice of non-renewal
    • Permission to display signs that the unit is for rent
    • Visits between 9am and 9pm in the presence of the lessor and the lessee
  • Visit by a potential buyer
    • 24h prior notice required
    • Visits in the presence of lessor and lessee
  • Verification of state of dwelling
    • 24h prior notice required
    • Visits in the presence of lessor and lessee
  • Minor work to be done in the dwelling
    • 24h prior notice
    • Work between 7am and 7pm
26
Q

Reasons to repossess immovable

A

Lessor must be a natural person and the sole owner of the immovable, or the undivided co-owner of the immovable with their spouse to whom they are married or in a civil union

For personal use

For use by a parent or a child

For use by a parent or a relative, for whom the lessor is the main support

For use by the spouse, for whom the lessor is the main support, following a separation, divorce or dissolution of a civil union

27
Q

Reasons for eviction

A

Dividing the dwelling

Substantially enlarging the dwelling

Changing the destination of the dwelling

28
Q

70yo no repossession rule

A

May not repossess or evict if: Lessee or lessee’s spouse is 70yo or older, has occupied the dwelling for at least 1 year, and has income equal to or less than that qualifying lessee or spouse for a dwelling in low-rental housing

- This exception is subject to one exception

    - If lessor is 70 or older and wishes to repossess the dwelling as a domicile for themselves, if the beneficiary of the repossession is 70 or older, or if the lessor is an owner-occupant 70 or older and wishes to have a beneficiary less than 70 yo reside in same immovable as themselves
29
Q

Reasons for resiliating a lease

A

Lessor’s request

- Payment of rent delayed by more than three weeks
- Frequent delay in payment of rent causing serious injury to the lessor
- Dwelling becomes unfit for habitation

Lessee’s request

- Dwelling becomes unfit for habitation
- Allocation of low-rent housing
- Inability to occupy a dwelling due to a disability
- Senior admitted to a long-term care facility
- Safety of the lessee or a child is at risk due to violence of a spouse, former spouse or third person

Only two cases allow resiliation of lease without Tribunal’s intervention

- Lessee abandons dwelling without any reason and takes their movable effects with them
- Lessee, without notifying lessor, abandons dwelling because it is unfit for habitation
30
Q

Suretyship (or personal guarantee)

A

Guarantee that may be required by a creditor to further guarantee the performance of an obligation

Benefit of discussion makes it possible for the surety to compel the creditor to consider the debtor’s property before demanding payment from them

Benefit of division allows surety to ask the creditor to divide their remedy between the sureties, when several persons have provided sureties for the same debtor in respect of the same debt

Both these benefits can be waived

31
Q

Order of priorities for prior claims

A

Legal fees
Outstanding seller’s claim
Retainer’s claim
State claims
Property taxes
- Since they have a prior claims ranking attached to immovable, they remain with the immovable, regardless of owner

32
Q

Cultural Heritage Act

A

Serves to protect all forms of cultural heritage

Government agencies: Conseil du Patrimoine Culturel du Quebec (consultative agency, provide recommendations to the Ministre de la Culture et des Communications) and Ministre de la Culture et des Communications is the official designated to apply the law

Legal status of heritage assets: Classification (When an immovable is classified, Minister’s authorization must be sought to make certain modifications, such as restoring, demolishing and transporting) and Heritage immovable (Once building recognized, owner has to submit a request for authorization to carry out certain modifications)

System of orders put in place to allow minister and municipalities to prevent a greater threat tot he property

33
Q

Environment quality act

A

Seller responsible for decontamination if a contaminant has escaped or has been buried there (ESA Study PP condition if unsure)

Protection policy for lakeshores, riverbanks, littoral zones and floodplains

34
Q

Aeronautics Act

A

Federal airport zoning regulations impose restrictions on height of structures, height of trees, breeding of certain birds and use of equipment employing radio frequencies

35
Q

Act respecting the preservation of agricultural land and agricultural activities

A

Law states that part of QC’s territory is an agricultural zone (green zone). Rest of territory is referred to as white zone

Owner of an immovable in green zone may only use it for agricultural purposes
- Must obtain prior authorization from Commission for the protection of the Agricultural Territory of Quebec if wish to use for other purposes

36
Q

Different laws regarding non-residents

A

Taxation Act concerning the sale of an immovable by a non-canadian resident. Capital gains tax must be paid by the buyer in the event of a default by the seller
To protect buyer, seller not resident of Canada must obtain from provincial and federal governments a certificate of compliance authorizing sale of immovable. Amount to be withheld will be indicated on the certificates

Act respecting the acquisition of farm land by non-resident
- authorization from commission de protection […] agricole
- Purchase cannot be made without authorization
- Include clause to this effect in PP

37
Q

Transfer of immovables subject to welcome tax and exemptions

A
  • Sale of immovable
  • Deed of gift of an immovable
  • Exchange of immovable
  • Declaration of transmission in connection with the transfer of an immovable
  • Sale under judicial authority
  • Immovable rental whose term exceeds 40 years
  • Emphyteusis and assignment of the rights of the empyteutic lessee

Exempt:

  • Transfer to ascendant/descendant in the direct line, including spouse, parents, child, grandchild, etc.
  • Does not apply to siblings
  • Even if a situation is exempt, municipalities may still apply a supplementary right
38
Q

Elements required to constitute a housing complex

A

(2 or more) immovables situated near one another

Immovables comprising together more than 12 dwellings

Immovables administered jointly by the same person or by related persons pursuant to the Taxation Act

Immovables that have an accessory, a dependency, or part of the structure, except a common wall, in common (pool, playground, exercise room, etc)

Sale of immovable part of a housing complex requires prior authorization of the Administrative Housing Tribunal

39
Q

Cases where GST/QST apply

A

Sale of a new immovable

Sale of commercial or industrial immovable, new or existing

Sale of vacant plot of land if it constitutes income for its owner conducting business

Immovable that has undergone major renovations

40
Q

Elements engaging a person’s liability

A

Fault
- Someone must be responsible for misfortune and must be able to prove

Damage
- Fault must have caused damage or harm to others (physical, moral or material)

Causal link
- What caused the damage? was damage caused as a redult of the fault?

OACIQ (8 decks)

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